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History and role

Te Kōti Mana Nui

Before the establishment of the Supreme Court, New Zealand’s highest court of appeal was the Judicial Committee of the Privy Council. Sitting in London, it dealt with a small number of appeals each year – usually fewer than ten.

Criminal appeal cases could be appealed only with the leave of the Privy Council, which was usually granted only if a substantial point of law needed to be resolved. Any civil action could be appealed if the amount involved exceeded $5000.

The Judicial Committee of the Privy Council was traditionally the final court of appeal for many Commonwealth countries. Over time, as the various colonies established their independence, many replaced the committee with their own court of final appeal.

The idea that New Zealand abolish its ties with the Judicial Committee of the Privy Council was first mooted more than 100 years ago by the Chief Justice, Sir Robert Stout and it has resurfaced many times in the intervening years.

It was raised in the 1978 Report of the Royal Commission on the Courts and again in 1989 in 'The Structure of the Courts NZLC R7' report.

On 4 October 1994, Cabinet asked the Solicitor-General to report to the Cabinet Strategy Committee on the constitutional, historical, jurisprudential and structural issues relating to the availability of appeals to the Privy Council. In particular, Cabinet asked that the report include the arguments for and against retention of the appeal and evaluation of a possible alternative appeal structure. The Solicitor-General was asked to consult with the Chief Justice, the President of the Court of Appeal and the Presidents of the Law Commission, the New Zealand Law Society and the New Zealand Bar Association. The report of the Solicitor-General was released on 5 May 1995.

The New Zealand Courts Structures Bill was introduced into Parliament in 1996 to end New Zealand appeals to the Privy Council. However, it was withdrawn as a consequence of the 1996 Coalition Agreement between National and New Zealand First.

The issue re-emerged in early 2000, when the Labour/Alliance Government agreed to review the role of the Privy Council. In December 2000 Cabinet approved the release of a discussion paper entitled Reshaping New Zealand’s Appeal Structure. It invited public comment on three options to replace the Privy Council. Submissions were evenly divided on whether appeals to the Privy Council should be abolished or retained. There was a clear consensus however that if appeals to the Privy Council ended, a replacement stand-alone court sitting above the Court of Appeal should be established.

Further public consultation culminated in the report of a Ministerial Advisory Group. This formed the basis of a Supreme Court Bill. The bill was introduced in 2002, and passed by Parliament on 14 October 2003. The Act came into force on 1 January 2004, officially establishing the Supreme Court, and at the same time ending appeals to the Privy Council in relation to all decisions of New Zealand courts made after 31 December 2003. The Supreme Court was formally established when the Act came into force, and was empowered to hear appeals from 1 July 2004. The Supreme Court Act 2003 was repealed by the Senior Courts Act 2016 on 1 March 2017.

The role and structure

The Supreme Court is New Zealand's final court of appeal.

According to the Supreme Court Act 2003, it was established to recognise New Zealand as an independent nation with its own history and traditions, and improve access to justice and enable important legal matters, including those relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions.

As the court of final appeal, the Supreme Court has the role of maintaining overall coherence in the legal system.

Appeals to the Supreme Court can be heard only with the leave of the court. It must give leave to appeal only if it is satisfied that it is necessary in the interests of justice (ss 73 - 74 Senior Courts Act 2016).

The court can sit only as a bench of five to hear substantive appeals. It is able to appoint retired judges of the Supreme Court or Court of Appeal (under the age of 75) where it is not possible to convene a court of five permanent members.

The judges of the Supreme Court continue to be judges of the High Court, which maintains the formal integration of the senior courts judicature. The Senior Courts Act does not expressly prevent the Supreme Court’s judges sitting in the High Court. However, it is not appropriate, except in exceptional circumstances, for judges of the Supreme Court to sit in the lower court on a case which could end up before the Supreme Court.